Lord Brabazon of Tara: My Lords, I beg to move the fourth Motion standing in my name on the Order Paper.
	Moved, That this House resolves that the promoters of the London Local Authorities and Transport for London Bill, which was originally introduced in the House of Commons in the previous Session on 25 January 2005, should have leave to suspend any further proceedings on the Bill in order to proceed with it, if they think fit, in the next Session of Parliament according to the provisions of Private Business Standing Order 150A (Suspension of bills).—(The Chairman of Committees.)

Baroness Anelay of St Johns: My Lords, bearing in mind the recent question asked by my noble friend Lady O'Cathain of the Chairman of Committees, the House might perhaps just need a slight flavour of the matter that we are debating. When I pressed this to a Division on 17 May, I was concerned about the process that the Government have adopted to designate a locality as an alcohol disorder zone. Amendment No. 27 would have ensured that a local authority could not act in a pre-emptive way when it wished to go through all the bureaucratic hoops that could lead almost inexorably to the imposition of an alcohol disorder zone on an area where licensees trade.
	Since the House decided in favour of my amendment way back in May, we have had further opportunities to debate the designation process on Report. In addition, the Minister has made it possible for the Wine and Spirit Trade Association and the British Retail Consortium to meet those involved in preparing the regulations that will deliver so much of this part of the Bill. I should like to put on record my gratitude to the Minister for all that he has done to facilitate that. This part of the Bill would have had a much rockier passage had it not been for his activity.
	I am also grateful to the Wine and Spirit Trade Association and the BRC for keeping me informed of progress at all stages. They and their vast membership understand that while an alcohol licence brings opportunities, it also carries significant responsibilities. They have made it clear to me that ensuring that these responsibilities are met is a clear priority for members of both organisations and that, through the trade associations and through their own individual company policies, they seek to demonstrate their responsible retailing approach. They have made it clear that tackling under-age sales in particular, which was of concern to noble Lords, is top of their agenda.
	In November 2005, they set up the Retail of Alcohol Standards Group to provide the industry with a forum to share best practice and develop new ideas in the fight to reduce under-age sales. It has been recognised that this group has made excellent progress including, first, retraining on how to sell alcohol legally and appropriately; and, secondly, commissioning research to help members to understand why, despite training and significant resources devoted to stopping under-age sales, such sales continue to happen on occasions. This research has been shared with the Home Office and other stakeholders—a favourite government word—and they are taking positive steps to implement the recommendations.
	It is vital that the licensing trade and the Government work closely and constructively on the regulations as they are promulgated and on the guidance that will be brought into effect as a result of this Bill. I was therefore grateful to receive last week fromMr McNulty—the Minister in another place—a letter setting out his policy position that the Government are sympathetic to the intention behind my amendment and that they wish to do all that they can to avoid designations being necessary. It is important that ADZs are treated as the very last resort and that they donot treat responsible and irresponsible licensees alike. Mr McNulty maintained in his letter that the intention behind my amendment could be covered by guidance. He sent to me the extract from guidance that the Government have developed with the WSTA. It was in the light of that, plus the Government's further assurances that followed that they would continue to work with the retail trade on the regulations and guidance, that I indicated to the Government that I would not seek to oppose their Motion today, and I do not.

Lord Drayson: My Lords, as I explained to the noble Earl in Committee, and as he correctly quoted, we believe that the existing clauses as drafted give the defence of lawful excuse, which is intended to allow a defence that an accused had express or implied authority or that his action was justified by law. Unfortunately, I do not have the military experience of the noble Earl and so, on the Floor of the House, I do not think that it would be appropriate for me to come up with military examples such as he describes. He has given a number of examples as we have discussed this matter, but I do not intend to go through them in detail and detain the House. Suffice it to say that we believe that the term "lawful excuse" is sufficient to cover the circumstances that he has described.
	As the noble Earl said, "reasonable excuse" would give a wider defence and allow a court martial to look at all the circumstances and to decide whether it thought that the accused's conduct was reasonable. The offences of assisting the enemy and obstructing operations are very serious, as they could potentially have a catastrophic effect on operational effectiveness and may, in the worst case, result in loss of life in our own forces. Amendments Nos. 1, 2 and 5 may well suggest to a serviceman that it was open to him to consider whether, for example, it was "reasonable" for him to give an enemy information that would be useful to it. I am sure that noble Lords will appreciate that the matters that are prohibited in Clauses 1 and 3 are so central to the operational effectiveness of our services and their operations that there is no room for grey areas. As the clauses are drafted, it is clear to all servicemen that they must not do these things unless a clear legal reason exists.
	I share the view of the noble Lord, Lord Astor, about the importance of the Bill in providing clarity to our Armed Forces. We believe that the Bill gives such clarity. These are not matters that can be open to debate or personal discretion. What one man considers to be reasonable may be completely unreasonable when other matters are considered. In the present environment in which our Armed Forces so often operate, it would be unreasonable of us to place the burden on them of having to weigh up such decisions. It is far better that we give clear direction to the services on these matters—and that direction is that the matters listed in Clauses 1 and 3 are prohibited in the absence of a lawful excuse.
	I strongly believe that it is appropriate that the narrower defence should apply to both those offences and, for the reasons stated, I cannot support the amendments. I urge the noble Earl to reconsider.
	The remaining amendments in the group—Amendments Nos. 7 to 10, 20, 24 to 26 and 29—raise issues similar to the ones to which I have responded in my reply to Amendments Nos. 1, 2 and 5 and I do not propose to go further and detain the House by repeating myself. I reinforce our belief that the narrower offence of lawful excuse should be applied to the offences to which the noble Earl Attlee has drawn attention. Offences that would be affected by these amendments are also likely to be the subject of orders, such as standing orders, which do not allow for personal discretion or debate.

Lord Craig of Radley: My Lords, in Committee I expressed reservations about the wording of Clause 8. It was convoluted. It identified tasks that, if not fulfilled, would mean that an offence of desertion would have been committed. I tabled a probing amendment to allow the Minister to explain why we should accept Clause 8, whose definitions of desertion differ significantly from those used in the existing single-service Acts. Those identical definitions were introduced by the Armed Forces Act 1971, which amended the Naval Discipline Act 1957 and the Army and Air Force Acts of 1955.
	The Minister's response did not satisfy me. He admitted that,
	"the wording of the clause takes more than one reading to be clear to the layman".—[Official Report, 24/7/06; col. 1636.]
	But servicemen are laymen, not lawyers, apart from a very few people in the legal branches of the services. Is it too much to expect government support for plainer English in the Bill?
	The Minister suggested that the wording of the existing Acts meant that:
	"If a soldier were due to go to Germany for a training exercise but went absent because of some temporary trouble at home, he would be guilty of desertion, rather than merely absent without leave. That would be too harsh".—[Official Report, 24/7/06; col. 1636.]
	I agree. If temporary trouble at home were the sole reason for his absence, surely he should never have been charged with desertion. But if he was to go to Germany and absented himself and there were indicators that that was, in the words of the amendment,
	"with the intention to avoid serving",
	in Germany or anywhere else overseas, then a charge of desertion would seem appropriate.
	The definitions of desertion in subsection (2) of the amendment are taken, word for word, from the existing legislation; the only variation is the splitting of the second definition into two parts. That is to limit a punishment of up to life imprisonment solely to someone found guilty of desertion before the enemy. Compared with the convoluted wording of Clause 8, these definitions are much clearer. Can we not stick to them? Subsection (3) of the amendment follows the wording in Clause 8(4) but is adjusted to restrict the punishment of life imprisonment to someone found guilty of desertion when before the enemy.
	My understanding is that the present legislation has not proved defective in achieving convictions for desertion. It is well known throughout the three services; it is a straightforward, much clearer definition than that in Clause 8. In view of the major and complex tasks faced by all three services in transferring from existing legislation to the new Act, it would seem sensible and highly desirable to avoid changes and differences, where possible. If the existing definitions are retained in the new statute, there will be no need to re-write that part of the manual of service law. Each of the existing Acts covering the three services uses the same wording.
	I also dislike the reliance on specific tasks as part of the new definition. That does not arise in the three existing Acts or in my amendment. As I pointed out in Committee, the reference to "property" in Clause 8 leaves many questions unanswered, given the definition of that word in Clause 374. Clause 8(3)(c) on,
	"military occupation of a foreign country or territory",
	defines a relevant service. But does a "country" or "territory" include those of the European Union or the Commonwealth? We might be expected to help out if there were a problem in one of those. What about British overseas territories, where a service man or woman might be posted? I expect that there may be answers based on legal expertise to some of these points, but I should like them to be clear to non-legal service personnel as well. I raise them to underline my concern at the way in which the clause is constructed, with its complex definitions of "relevant service". It may not be as all-embracing as the authors had intended.
	I also asked in Committee whether "occupation" covered every conceivable situation from a large-scale invasion to a few service men being attached to a unit of the country or territory at the relevant authority's request. I have not had a response to that.
	My probing amendment in Committee sought to give the Minister the opportunity to explain why it was thought necessary to introduce a totally different construct to describe the offences of desertion. It is totally different from the existing one, which all three services have relied on for more than 35 years, since 1971, and which they will rely on until the new Act is introduced. The Minister was not able to help in Committee but perhaps he can this time, and I shall listen with care to his response. I beg to move.

Lord Judd: My Lords, I shall speak to Amendment No. 18, which is in this group. Ideally, I should have liked to speak to this amendment separately but, in view of our procedural ruling, there may not be an opportunity to speak about the importance of Amendment No. 18 if Amendment No. 14 prevails.
	I make plain that I feel as strongly as anyone about the seriousness of desertion; I do not want any misunderstanding on that score. Desertion can be a literally terrible offence. In the modern technological services, the implications of desertion can be even greater than was ever imagined in the past. The desertion of a key person could have huge implications for the whole operation and for the well-being and safety of comrades and colleagues.
	In his earlier amendments, concerning the word "lawful", the noble Lord, Lord Thomas of Gresford, dealt at some length with the arguments. Although his arguments did not prevail—I was sad about that—they were very powerful and I shall not repeat them all now. As the noble Lord kindly remarked, in Committee I tabled an amendment about the word "legal". I listened very carefully to the Minister's reply and recognised that he and the Government believed that there were complexities relating to the interplay between international and domestic law. In view of the significance of the arguments put forward by my noble friend, I decided that, although I believed the issue remained vital, it was important to address it with slightly different wording.
	Perhaps I may anticipate an argument which the Government may deploy against my amendment and which the Minister used in dealing with a previous amendment. It is the suggestion that ordinary serving men and women should not really be worried about the implications of international law, as that is something for Governments. I am not persuaded by that argument. It seems to me that an individual service man who does something that is not lawful is, in the end, responsible for his action and can be brought to task for it very properly.
	Another point that worries me is that that is a little patronising as it suggests that we do not have very intelligent service men and women who are capable of working out very important things for themselves, and that that should be left to their superiors and Government. I do not accept that argument. For a short while, I held a short service commission; I was a volunteer. I started as a national serviceman, but I transferred into the regular Royal Air Force for a short period. As an intelligent person deciding that I wanted to take that step, I looked at its significance. It seems nothing but helpful to spell out in the law that the action that one might be required to take as a volunteer will be and must be lawful.
	I turn to recent history. We all know that at the time of the Iraq war the chiefs of staff went to great lengths to ensure that they were persuaded that what was being undertaken was lawful. I was immensely reassured that they took such an issue so seriously. That is altogether good and healthy in the kind of society in which I want to live. I commend them for that.
	It is also interesting to note that this argument should be deployed by my noble friend, because it seems to be contradicted at the beginning of the Bill, on page 1 at line 16. On the responsibilities of someone taken prisoner, it spells out what that person must not do:
	"A person subject to service law who has been captured by an enemy commits an offence if, without lawful excuse, he intentionally serves with or assists the enemy—
	(a) in the prosecution of hostilities or of measures likely to influence morale; or
	(b) in any other manner not authorised by international law".
	Let us consider a prisoner who is isolated, under pressure, bewildered and disorientated. At that juncture, he is expected to know whether something that he is being asked to do is in keeping with international law. We write that into the Bill, right at the beginning, so how can the Minister's argument logically be deployed in later provisions, the argument that, when it comes to the occupation of a foreign country, it is not really up to the ordinary service person to worry about whether something is in keeping with international law? I find that totally inconsistent. Not for a moment am I suggesting that the provision on page 1 should not be there—it should be—but its logic utterly follows through into what I am arguing in Amendment No. 18.
	To occupy a foreign country is a very serious matter. I would hate it if at some later stage it were to be argued that Parliament specifically decided that it was not appropriate to say that this must be in keeping with international law. I do not think that would happen under the present Administration or any in the foreseeable future, although one never knows what might happen in Britain. Sometimes we do not take this point seriously enough when we legislate because we look at our present experiences and not at what might happen unpredictably. It could be argued in a hot situation with some force that Parliament considered the issue and decided that it was not appropriate to make this reference to, and to underline, international law.
	In these circumstances, I ask the Minister to seriously consider my proposals in AmendmentNo. 18. I know that he is a serious man who listens to arguments and thinks about these things carefully, and therefore beg him not to say anything today which closes the door, even if he does not feel able to accept the proposals at this stage. I hope he will give a firm undertaking to consider some of the arguments I have tried to put—I am sure others will put much stronger ones—and come back to us with his decision at Third Reading, if need be.

Lord Archer of Sandwell: My Lords, I have not previously intervened in your Lordships' debates on this Bill. My plea in mitigation is that there has been nothing in the Marshalled List in the terms raised by my noble friend Lord Judd's amendment. I hope that the noble and gallant Lord, Lord Craig, will pardon me if I address that amendment.
	I congratulate my noble friend on posing a question that causes concern to a number of young people in many parts of the world. I accept at once that it does not admit of an easy answer. It is part of a larger question and it may help to consider it in context. It has a long ancestry. It really consists of two questions. If a soldier is commanded to do an act that is a criminal offence, should he be excused from military discipline for refusing to obey? That gives rise to the converse question. If he carries out the command, should he be excused from criminal responsibility on the ground that he is acting in obedience to superior orders, a matter raised earlier in our proceedings today by the noble Lord, Lord Thomas of Gresford?
	We are presented with a conflict between two principles. The first is the constitutional principle that the military is subject to the law, as we all are. It is their constitutional duty to recognise that they are subordinate to the civil authorities. A military commander has no power in law to excuse a subordinate from complying with the criminal law. The second principle—of course I accept entirely what was said by the noble Lord, Lord Campbell—is that an army requires discipline if it is to be effective. If every order evokes a debate, an army simply cannot function. Traditionally, that dilemma has been addressed in two ways. First, it has usually been provided that a soldier commits a disciplinary offence only by refusing to carry out a lawful order. That reappears in this Bill in Clause 12—

Lord Archer of Sandwell: My Lords, if the noble Lord will forgive me, I hope to come to something approaching his question in a few moments. He asks whether I draw a distinction. I am not clear that I can draw a relevant distinction. If there is such a distinction, I have not heard it formulated.
	I was going to say that, traditionally, a soldier commits a disciplinary offence only by refusing to carry out a lawful order. It appears in Clause 12. As my noble friend Lord Judd pointed out, it is referred to in Clause 1. Fairly clearly, it underlies a lot of the thinking on military discipline and has been reappearing in military disciplinary provisions for a long time. Secondly, most systems have accepted that a soldier commits an offence against the criminal law in obeying an order only if that order is clearly unlawful. That has become known as the doctrine of manifest illegality. It goes well back in history—it was provided for in the Roman army. A soldier was given a window of escape from his dilemma. It would be possible to avoid both prongs of the fork. It worked reasonably well when a soldier was expected to be a trained automaton. His duty was to obey an order instantly and unreflectively. More recently, as my noble friend has pointed out, and particularly since the Second World War that position has changed. First, before enrolment, soldiers are expected to attain impressive standards of education. They are encouraged to show initiative and to reflect on what they are doing. A soldier is no longer an automaton. Secondly, questions arise in a wider context—and we come to the question posed to me by the noble Lord, Lord Campbell. We are all being subjected not only to our domestic legal systems, but also to a developing international legal order, and people with no pretension of being international lawyers debate whether a particular war is a lawful war.
	Even that dilemma is not new. Martin Luther addressed it when he said that there was no blame attaching to participation in an unjust war, unless it was manifestly unjust. That may not necessarily be persuasive to everyone. Napoleon said that questions of theology were for the next world. But von Moltke said that he opted for what he called,
	"an army which does not deliberate".
	That has sometimes been misunderstood. What he meant was not that the military should be unrestrained but that it should carry out the instructions of the civil authority without question. There we find ourselves perhaps parting company with some of our friends. Even the instructions of the civil authority are not ethically conclusive. Someone may say, "Even if my government command me to do something, that does not necessarily silence my conscience". In the last resort we cannot pass responsibility for our actions on to the shoulders of others.
	There is a precedent within our own history. In 1911 the Government were confronted with something like a mutiny when our forces in Ireland were faced with instructions to suppress Protestant resistance to the partition of Ireland. In fact the matter was resolved not by prosecuting anyone but by all sides using common sense. The dispute was not about what the law provided but about how far an individual conscience should be stretched. Whether we would agree with the senior officers who question the instruction is not relevant. Most of us have a sticking point.
	The United States has been confronted with this problem more than once in recent years. Young people were troubled about the legality and the morality of the war in Vietnam, and many were charged with desertion. The position was considered by the Supreme Court in the case of Thier-Vaughn, which was a refusal to participate in the Desert Storm operation. The court ruled on that occasion that it could not question matters of foreign policy. It said that they were not justiceable.
	That view is understandable. It has been frequently shared by the courts in this country. They have repeatedly declared their reluctance to review decisions by the Executive in the field of foreign relations, but to an increasing extent international relations are impinging on the concerns of private citizens and subjecting them to decisions about the proper course of action. We are passing into an era where the doctrine of sovereignty is increasingly under examination and the attitude of domestic courts to diplomatic decisions may need to be reviewed in the not too distant future.
	I invite your Lordships' attention to yet another problem. Must the civil authority always have the last word? What is a soldier to do if faced with conflicting orders? What if there is a military insurrection and a general, intent on overthrowing the civil government, orders a colonel to occupy the presidential palace? It is not a practice to be encouraged, but sometimes we may even have approved of such an action by the military. General Pinochet declared that any action by the military to check the killing and the disappearances he was ordering was "unprofessional". We may take leave to disagree with him.
	What would we say of action by the military to replace the regime in Zimbabwe? In words that have expressed the heart-searching of a whole generation, "It ain't easy, kid". I suspect that we could embark on a long debate about the ethical implications. I appreciate the dilemmas which the amendment raises, but we are considering a young person who, by definition, has wrestled with his or her conscience and decided that whatever the consequences for themselves personally, they cannot transfer their personal responsibility to others. By definition, we are talking about those who are the best, most responsible and most unselfish of a generation. To subject such a person to the full range of military penalties is not something to embark on lightly.
	In all my years working with Amnesty, I was repeatedly assured that this country had no prisoners of conscience. What else would such a person be? I confess that I have hesitated about this but, when the chips are down, I support the amendment.

Lord Garden: My Lords, as I said in Committee, the amendment tabled by the noble and gallant Lord, Lord Craig, Amendment No. 14, brings clarity to the desertion provision in the Bill. The provision was clear before in previous legislation. I have read in detail the Minister's remarks in response in Committee but I still do not understand the advantages that the new wording would give us.
	There is the idea that the new wording will in some way constrain the offence so that it applies specifically to active service. Our Armed Forces today may not always be in the theatre of operation, but they are all participating in contributing to active service. It seems that, in order to make those constraints, the Government proposals are trying to define things too neatly and finely. There was clarity before. So I support the amendment of the noble and gallant Lord in all but one respect, which is covered by my amendment, Amendment No. 19—that amendment will of course fall if we agree to Amendment No. 14, but I give notice that I will return to the question of the maximum punishment if Amendment No. 14 is agreed to today.
	I will not prolong the debate on AmendmentNo. 18, to which I have added my name. We have heard cogent arguments from the noble Lord, Lord Judd, and the noble and learned Lord, Lord Archer of Sandwell. There are concerns that need to be addressed when we describe responsibilities under international law. The noble Lord, Lord Judd, made the important point that we are legislating for unknown futures. I welcome the fact that, in the same way, if the amendment of the noble and gallant Lord, Lord Craig, is accepted, we will have another opportunity at Third Reading to consider Amendment No. 18.

Lord Drayson: My Lords, I thank the noble Lord. The noble and gallant Lord, Lord Craig, asked two questions about the definition of "relevant service". The first is about the meaning of operations,
	"for the protection of life or property".
	The second is about the meaning of "military occupation". Those expressions have very well established meanings and are used in the current definition of "active service" in each of the current service discipline Acts.
	An operation to protect life and property simply refers to where our Armed Forces may take part in operations abroad in response to a threat to people or to physical property of any sort, so long as the threat is great enough to justify the operation. Clear examples of this would be operations to evacuate civilians and safeguard their property in the event of a national disaster or a local conflict, such as occurred respectively in Montserrat or more recently in the Lebanon. The definition of "property" in the Bill, like that in the existing Acts, relates to clauses dealing with property in the UK, and so does not apply to this clause, which specifically relates to operations overseas.
	Military occupation involves the idea of control. It is therefore limited to where our forces, perhaps with allies, have established military control of a foreign area or country whether or not there are also civilian authorities. It does not therefore cover a situation in which we are present abroad either fighting to establish control or where we are there at the request of the foreign Government. For example, before reunification our Armed Forces in Berlin were one of the occupying forces. But in West Germany our forces were of course not in occupation of the country. On that basis, I hope that the noble and gallant Lord will withdraw his amendment.
	Under Amendment No. 18, it would not be desertion to go absent without leave to avoid service in a military occupation unless that occupation was fully in accordance with international law. We expect all members of the Armed Forces to be aware of their personal responsibilities under international law. They are trained in such important matters as the respect for property and the proper treatment of prisoners, enemy wounded and civilians caught up in the conflict. These personal responsibilities are ones for which a deliberate breach brings criminal liability.
	However, the decisions to go to war and to occupy a foreign state are matters for Government and Parliament, and are subject to democratic accountability. I would add that even Governments and Parliament find the issues of what international law requires or prohibits extremely difficult. I therefore believe that it would be wrong in principle to remove from members of the Armed Forces their obligations where they consider that an occupation is not in accordance with international law.
	There is another reason. Of course it is right that members of the Armed Forces, like all citizens, should consider the rights and wrongs of operations in which they take part. They should exercise their democratic rights on the basis of what Governments expect them to do. But it is another thing to provide that a member of the Armed Forces may in such a situation simply desert his colleagues and his duties. That in my view is the wrong thing to do. I believe that nearly all members of the Armed Forces would agree. To allow it would be tantamount to telling all other service personnel who stayed to do their duty that they were misguided. I cannot imagine what effect this could have on morale and on operational effectiveness.
	My noble friend Lord Judd has asked why Clause 1 refers to international law. He pointed out that the clause makes it an offence for service personnel captured by an enemy to assist the enemy in any way,
	"not authorised by international law".
	He said that this would require the prisoner to consider what international law requires and asked what objection there can therefore be to allowing members of the Armed Forces to decide whether an occupation is in accordance with international law. I have already indicated where I believe the difference lies. The responsibility for undertaking operations is not on the individual; it is a responsibility of states and a matter for democratic control. Captured members of the Armed Forces should not generally assist the enemy, and Clause 1 rightly makes that an offence. But the Geneva Conventions recognise that captors may require prisoners of war to do certain types of work, so it would be quite wrong for a prisoner to be guilty of assisting the enemy where he has simply done what international law allows his captors to require him to do. Our personnel are trained on their rights if captured and they will know when they may be required to work.
	My noble and learned friend Lord Archer of Sandwell asked whether a soldier can disobey an order to commit a crime. On this point I can give a reassurance to my noble and learned friend—a serviceman does not have to obey an order to commit a crime. However, Amendment No. 18 is different; it is not about crime. It allows a soldier to desert if he is serving in occupation of a foreign country and that occupation does not have the full backing of international law.
	I hope that, with the explanations and reassurances that I have given, the noble and gallant Lord will be persuaded to withdraw his amendment.

Lord Drayson: My Lords, Amendments Nos. 21 and 22 seek to make it a defence that a drug was taken on the advice of any superior officer. These two amendments are unnecessary as the situation which I believe the noble Lords are concerned about is where a superior officer advises a serviceman that he should take certain drugs to guard against the effect of chemical or other weapons. If a superior officer advised a serviceman to take such drugs, he would do so on fully considered medical advice. For this reason the serviceman would have a defence to a charge of unfitness through drugs by virtue of subsection (2)(a) if,
	"the drug was taken or administered on medical advice and [he] complied with any directions given as part of that advice".
	I am confident, therefore, that the clause contains safeguards that address the concerns that noble Lords have raised. I urge the noble Lord to reconsider the amendment.
	In my letter I made the point that it is important that the advice is given through the chain of command. The chain of command would therefore give the advice based on considered medical advice given to it.
	Amendment No. 23 provides for an additional requirement when administering drugs for "operational performance enhancement" reasons. I take on board the noble Lord's point about the potential development of such performance enhancing drugs. I have considered the matter further. It is important to state specifically that the drug must be authorised by the Secretary of State and requires the written consent of the individual.
	There is no policy specifically relating to the authorisation of so-called performance-enhancing drugs. Indeed, we have no agreed definition of what constitutes such a drug. This is a developing area of research and at present we do not sanction their use by service personnel. I believe that the concern is that in the future members of the Armed Forces might be required to take them. As the noble Lord says, this Bill looks to the future and therefore we should think about that matter. We have thought about it. The important point here is that, were we to move in this direction, such drugs would be subject to the current arrangements that cover all drugs. Singling out performance-enhancing drugs is neither helpful nor necessary. No matter what its purpose, each drug should be looked at on its own merits through a medical assessment of the risks and benefits. The assessment would then be made of whether it would be beneficial, or indeed lifesaving, to the servicemen.
	Normally, as I have said, drugs are administered to members of the Armed Forces on the basis of advice, considered medical advice and then informed consent. Personnel would not normally be ordered to take drugs. If they were to be ordered to take drugs, that would only be done with the express agreement of the Secretary of State acting on legal and medical advice. Apart from the difficulties of the definition of performance-enhancing drugs, I do not see the need for a specific clause about them. I hope that reassures the noble Lord.

Lord Garden: My Lords, I am grateful to the Minister for the very helpful response to both questions that I raised. I take his assurances for my first two amendments on advice. I would welcome some clarification in writing perhaps about the question of relative rank, because I have not quite got my head around that yet.
	We have had a useful exchange on performance-enhancement drugs. I accept that we are looking at an uncertain future, and the noble Lord has given some assurances about how these drugs will be handled. The only thing that concerned me slightly was that he appeared to want to lump performance-enhancing drugs into the same category as those that either cure illness or prevent infection and the like. There are wider arguments, but this Bill is not the place for them. I beg leave to withdraw the amendment.

Lord Drayson: My Lords, I shall speak to Amendments Nos. 27, 28 and 73. AmendmentsNos. 27 and 28 respond to concerns raised in Committee that the offence of inaccurate certification was too narrow. I undertook to look at this again, and I have done so. Similar concerns were raised when the Bill was scrutinised in another place.
	The offence of inaccurate certification is committed if a service man or woman signs a relevant certificate without ensuring its accuracy. Relevant certificates relate to Her Majesty's ships, aircraft and aircraft material. The amendment would provide for the extension of the offence of inaccurate certification to prescribed equipment. I am grateful to the noble Lord for pushing me to further consider this. The point that he made about equipment on land vehicles relating to identification of friend or foe was a very cogent argument. There is, however, a balance to be struck between extending the offence to all service material, which would be excessively bureaucratic, and ensuring that it can cover equipment that has the same sort of significance as is already covered on sea and air platforms. I have just given the example of IFF.
	Putting a list of descriptions of equipment in the Bill would be too inflexible and would not take into account changes in technology. The amendment therefore provides for the Defence Council to prescribe the descriptions of equipment to which the offence applies. Amendment No. 73 to Clause 373 requires these Defence Council regulations to be made by statutory instrument. That provides the appropriate level of scrutiny while ensuring the services retain the central voice over which equipment is described for this purpose. The services have been consulted about this and are content with the proposal that I have brought forward. I am grateful to noble Lords for highlighting this issue, and I hope that the amendment meets with your Lordships' approval. I beg to move.

Lord Garden: My Lords, We, too, welcome the amendment. The Minister wrote to me on 23 October to explain how he had taken on board my concerns expressed in Committee about the narrowness of the inaccurate certification clause. I am pleased that he has brought forward these amendments, which will allow the regime of certification to meet future challenges.
	However, the annexe to the Minister's letter stated, however, that the situation remained that testing and checking of all land equipment did not involve a formal certification procedure and that such a procedure would not be practical or useful. I understand that the Minister believes that he needs to look at the issue on a case-by-case basis, and that is important, but the letter gave the impression of there being closed minds within the land systems staff. As the services work more closely together, they need to pick up best practice from each other. Lives depend as much on proper servicing and checking of audit systems on land as on the sea and in the air, where the services have been more practised in that.
	I welcome these amendments, but perhaps the Minister might wish to keep an eye on this matter, outside the confines of the Bill.

Lord Thomas of Gresford: My Lords, although the amendment is grouped with Amendments Nos. 31 and 35, they relate to three separate and important issues. If noble Lords, in particular the noble Lord, Lord Campbell, will forgive me, given that things have moved on since Committee, I think that it is necessary to spend some time considering these amendments.
	Amendment No. 30 simply repeats the provision in the Army Act 1955 that:
	"A person shall not be charged with an offence under this section,"
	which relates to the military charge for committing a civil offence,
	"committed in the United Kingdom if the corresponding offence under the law of England and Wales is treason, murder, manslaughter or rape".
	Noble Lords who were here when we debated this matter in Committee may recall my comment in withdrawing the amendment that I had not heard any reason from the Government as to why a change as dramatic as this was being made in the existing provisions.
	I am grateful to the noble Lord, Lord Drayson, and to the Bill team, who, no doubt, assisted him, for writing to me extensively on 25 October. In particular, the justification put forward in the letter was that the present exclusions for "treason, murder, manslaughter or rape" committed in the United Kingdom were, he stated, "an historical anomaly". He went on to say:
	"By this I mean that it is anomalous that the Service system can deal with very serious sexual offences committed in the UK but not rape; that they can deal with grievous bodily harm or official secrets cases in the UK but not manslaughter. And they can deal with very serious cases (carrying up to life imprisonment) for a number of offences committed within the UK (as well of course abroad). The list of exclusions is arbitrary".
	Having had that letter from the Minister, I realise that it is an arbitrary list of exclusions. However, the answer is not to remove those exclusions but to extend the offences which, if committed in the United Kingdom, should not be subject to court martial. Thus, not only should a soldier or a civilian subject to service law not be charged with offences of treason, murder, manslaughter or rape committed in the United Kingdom, as at present, but, following the Minister's analysis, he should not be charged with any offence carrying a sentence of life imprisonment.
	Perhaps I may explain to your Lordships that if a person is sentenced by court martial to more than two years' imprisonment, he is immediately thrown out of the services and will serve his sentence not in a military prison but in an ordinary prison as a civilian. If the sentence is life imprisonment, he then becomes subject to the regime for lifers within the prison and he will be subject to all the usual routines of parole and so on until his sentence is exhausted. So, if a soldier or civilian subject to service law is to be convicted of serious offences such as that and immediately lose his status, it seems right that he should have the opportunity of being tried in the Crown Court and not by court martial. Therefore, I propose to withdraw Amendment No. 30 and redraft it for the purposes of Third Reading to extend the list of offences that would be subject to ordinary trial.
	The Minister also says—this is really at the crux of the matter so far as we are concerned—in his letter:
	"I do not accept that a military system which is the equivalent of the civilian system must be the same as that civilian system in every respect. Our aim is to create a service system which is as good as the civilian system and which is appropriate for the services. It must be capable of operating in a service context and have due regard to that context".
	I am sure that it is the Government's aim to try to bring the court martial system up to the standards of the civil system, as exemplified by trial by jury in the Crown Court. It seems to me that, if the Government were to accept some of the amendments that we have tabled, they would be some way along the line to improving the system. It has improved over the years but not as a result of the desire of any Government, whether this or any predecessor Governments; it has improved because of decisions of the European Court of Human Rights, which has pointed out in judgment after judgment that a fair trial by court martial has not been possible in important cases.
	That brings me to Amendment No. 31. Although, as with all Bills, this Bill was certified by the Minister as complying with the European convention at the beginning of its passage, a decision of the European Court on Wednesday last week was fundamental. I pray it in aid in support of Amendment No. 31.
	Your Lordships may recall that in Committee we discussed the case of Martin, in which I was involved. It went to the House of Lords and subsequently, in 1997, to the European Court. The judgment was delivered last Wednesday, just in time for this debate. That gives your Lordships some idea of the importance of the Human Rights Act—it was not available for the House of Lords' decision in 1997—in bringing the European Convention into British law.
	This was the trial of a 17 year-old civilian, the son of a serving soldier, for murder. The trial took place by court martial in Germany because at the time of committing the offence his father was in the Army, stationed in Germany. By the time the trial took place, 12 months later, his father had left the forces and the young lad was taken back to Germany, having been on remand in this country, and he was tried there. First, the matter went to the courts martial appeal court in which the noble and learned Lord, Lord Bingham, who was then Lord Chief Justice, said:
	"We have some considerable sympathy with the appellant's complaint"—
	that is, of an abuse of process—
	"With the benefit of hindsight, it seems plain that the trial could have been conducted in England without undue difficulty. It would in our view have been preferable if this young appellant, whose subjection to military law was purely vicarious and involuntary, had been tried here with all the procedural safeguards which procedure in the ordinary criminal courts affords. We cannot, however, stigmatise these proceedings as abusive. They were strictly in accordance with a procedure prescribed by Parliament to apply in such cases".
	As I said to your Lordships, the Human Rights Act had not been thought of when that case was heard in 1996.
	When the matter went to the House of Lords, the noble and learned Lords, Lord Slynn of Hadley and Lord Hope of Craighead, expressed the view that the decision to prosecute the applicant, a civilian aged only 17 at the time of the murder, by court martial had been inappropriate. Again, the decision was that the proceedings were conducted within the rules laid down by Parliament and could not, therefore, be abusive.
	It is very interesting to see what the European Court of Human Rights has made of this in its judgment which was published last Wednesday. An important judge in that court is Sir Nicolas Bratza, a very distinguished English lawyer who, when practising in this country, used to appear mainly on behalf of the Government. He has an impeccable background. The European Court went beyond children under the age of 18 to all civilians and decided:
	"It is, however, a different matter where the national legislation empowers a military court to try civilians on criminal charges ... While it cannot be contended that the Convention absolutely excludes the jurisdiction of military courts to try cases in which civilians are implicated, the existence of such jurisdiction should be subjected to particularly careful scrutiny, since only in very exceptional circumstances could the determination of criminal charges against civilians in such courts be held to be compatible with Article 6"—
	that is, the article which requires a trial to be fair—
	"The power of military criminal justice should not extend to civilians unless there are compelling reasons justifying such a situation, and if so only on a clear and foreseeable legal basis".
	It concluded that the complaint of young Martin was fully justified and upheld his appeal and awarded costs. There was a violation of the requirements of a fair trial. In the past few days, the European Court has decided that that which is proposed in the Bill denies to a defendant a fair trial.
	Bearing in mind the Martin case, my amendment is limited to a civilian under the age of 18 who is subject to service discipline. It suggests that no civilian of that age may be prosecuted before the court martial for an offence under this clause. The service civilian court should set up a proper system of juvenile courts, or something akin to them, which could deal with the under-18s. No more should youngsters who have not joined the Army, Navy or Air Force be hauled in front of a court martial, with all that that implies, but without, as the then Lord Chief Justice, the noble and learned Lord, Lord Bingham, said, the procedural safeguards that the Crown Court affords.
	I say it loud and clear: we have moved a long way on courts martial. However, they are not the equivalent of a Crown Court jury trial with the procedural safeguards we have in this country. Still the Government drag their feet with this Bill in front of them. I do not suppose we will look at the issue again for 10, 15 or 20 years.
	I hope that the Government can respond. They must respond to the European court's judgment. In his letter, the noble Lord, Lord Drayson, says that:
	"Given the ruling of the European Court in Martin which we have received today I am sure you will understand if I confine my comments for now to these issues in relation to service personnel".
	As your Lordships would expect, the Government were not able to respond so quickly, in relation to civilians, to a judgment delivered only last Wednesday. Again, that is why I will not be pressing Amendment No. 31 tonight, but I shall table it again at Third Reading. That will at least give the Government a little time to consider whether this Bill is not the ideal opportunity to respond to the concerns of the European Court of Human Rights.
	I told your Lordships that these were three disparate issues. Amendment No. 35 is on a different, although not unrelated, issue. In 1861, 150 years ago, it was decided that the courts of the United Kingdom could try any British citizen charged with murder, even though that murder did not take place in the United Kingdom. Any British citizen may be tried for an offence committed abroad. All that Amendment No. 35 provides for is that, where the courts of the United Kingdom have such extra-territorial jurisdiction to try a service offence committed abroad, the defendant may elect to be tried in the United Kingdom.
	All the opposition to our amendments has been along the lines that we must maintain disciplined services. I entirely agree with that aim. We should stop from time to time, however, and look at it from the defendant's point of view. That is what is missing. We have looked at the criminal court system in this country with the aim of ensuring a fair trial and doing what is right for the individual, and have tried to prevent the innocent from being convicted. Notwithstanding some of the recent measures by the Government that have weakened the position of the defendant in the British courts, we still look at it from the defendant's point of view. We should do that when considering a military system of justice, instead of always concentrating on the needs of discipline, morale and so on. We should look at whether a person charged with an offence before a court martial will get a fair trial. The European court has said,for civilians, "No!"—except in the most unusual circumstances. I beg to move.

Lord Kingsland: My Lords, on Amendments Nos. 33 and 34, your Lordships will recall that in Committee, a single amendment, Amendment No. 61, dealt with two related but distinct issues: that of an absolute defence and that of the legal status of rules of engagement. Those two issues were conflated in the amendment, which was, by our own admission, probing. What your Lordships have before you tonight is a line of amendments which separates them.
	My noble friend Lord Campbell has dealt with the question of a defence and we have the text of his amendment, Amendment No. 32. I shall not add anything to what he has said—save only that my amendment to his amendment is not in any way intended to undermine the principle that he seeks to advance in your Lordships' House, but simply to suggest that orders ought to be seen in the context of rules of engagement, rather than vice versa. My noble friend may not be entirely convinced of that; but I do not think that the point is sufficiently important for me to take it beyond stating our difference.
	Rather, I want to talk about the other aspect, which is the question of the status of rules of engagement. I put on record my gratitude to the Minister, who has helpfully provided me with an extremely perspicacious document produced by his officials in the ministry, who have clearly spent a great deal of time thinking about this matter. I am much obliged to him and to them for what they have done.
	My amendments seek to meet the two primary criticisms that have been brought to bear on me from on high about enshrining the rules of engagement. The first relates to flexibility and the desirability of commanders being able to refashion and reformulate the rules of engagement, sometimes over a period of hours or within even smaller time limits. The second relates to confidentiality and the importance of the rules of engagement not getting into the hands of the enemy.
	We have abandoned on Report the very specific drafting that we adopted in Committee, to say simply that,
	"the rules of engagement shall have statutory force".
	This, I submit, meets both the concerns expressed by the Minister. It does not matter how often the rules of engagement change in the course of an operation; whatever they happen to be at the relevant moment when the soldier's action is called into question, they will have statutory force. So it is not necessary to enshrine them in any document, although of course they will be in some documentary form in a unit or in some formation above a unit. Nevertheless, because the law requires them to have statutory force, they will, by that very requirement, have the force that I seek. It flows from that that, as there will be no publication of the rules of engagement, they will by their very nature be confidential. I therefore believe that the two objections made by the Minister do not apply.
	Why is it so important to give rules of engagement statutory force? I need only remind your Lordships of the arguments that I advanced in Committee. There are primarily two such arguments. First, the new role that Article 7 of the European Convention on Human Rights plays in our law requires anyone contemplating an activity to know before he undertakes that activity whether he is likely to commit a crime. That applies precisely to a soldier on the battlefield, who needs to know what legal framework is brought to bear on what he can and cannot do. He needs certainty, or as near certainty as one can give—one cannot give absolute certainty. At the end of the day, even in the context of rules of engagement, he must, of course, exercise only force that is reasonable and apposite in the circumstances; but apart from that necessary common-law qualification, the rules of engagement provide him with a framework in which he can have confidence.
	The other reason is particularly germane to the kind of operations that we undertake in Iraq and Afghanistan. Under the convention of the International Criminal Court, it is perfectly possible for a soldier to do something in breach of that convention which gives the state in which he is conducting his operations the right to try him for a war crime. As that is so, it is vital that a soldier knows exactly where he stands. I can think of no more serious threat to one of our soldiers abroad than the possibility of being tried for a war crime by a state that does not respect human rights. The rules of engagement give him a degree of certainty that otherwise does not exist.
	I have no idea how the Minister will respond, but when this point was ventilated in Committee, I had a great deal of support from your Lordships, including the noble and gallant Lords, Lord Vincent of Coleshill, Lord Craig of Radley and Lord Inge, the noble Lords, Lord Ramsbotham and Lord Thomas of Gresford, and the noble and learned Lord, Lord Lyell of Markyate. All of them supported the idea that the rules of engagement should be given statutory form. In these amendments, I have tried to meet some of the criticisms of detail that were made and to provide something that protects flexibility and security but also gives the individual soldier the certainty that he requires. I beg to move.

Lord Thomas of Gresford: My Lords, we are very sympathetic with the thinking behind these amendments, although we are not very happy with the actual wording. It should be quite simple: if a serviceman acts within the rules of engagement, he will not be prosecuted—never mind convicted. He will not have—as certain servicemen have arising out of the Iraq conflict—years of worry that prosecutions are pending against them. It should be one of the foremost principles on which the Director of Service Prosecutions acts. He should consider, where the rules of engagement were conveyed to the proposed defendant, whether the defendant deliberately breached those rules and, if so, what the consequences of that were.
	The noble Lord, Lord Ramsbotham, said that the question is whether the soldier acted in good faith. He pointed out that there are difficulties in defining "in good faith". The noble Lord, Lord Kingsland, said that a soldier should know where he stands. In the case of the paratroopers tried at Colchester last September—I declare an interest in that I was involved on behalf of one of them—it was apparent that no thought had been given in the prosecution to what the rules of engagement were at the time. The defendants were a platoon of soldiers who had been patrolling in the Maysan province. As far as they were concerned, they had been told by an officer, "Well, it's back to Northern Ireland rules now. We have just won this war". In fact, it was not and those were not the rules of engagement. The rules of engagement that were still in force at the time of the incident with which they were concerned were the rules of engagement that were employed on the invasion into Iraq—to seek out and destroy the enemy. That was the broad concept in operation. But the paratroopers thought that they should be acting like policemen in the role that they were familiar with in Northern Ireland. Your Lordships will remember that, for a time, berets were worn in an attempt to win hearts and minds in the southern part of Iraq. The situation was that they did not know what the rules of engagement were because the rules of engagement had not been conveyed to them.
	Therefore, the Director of Service Prosecutions, when he is considering a prosecution, should think, "Did they know what they were supposed to do? Did they act in good faith within those rules or were they deliberately disobeying orders?" It is far better for the decision on whether to prosecute to be taken at that point, rather than for a defence in the terms of this amendment to be discussed years later on whether the defendant had the intention not to comply with orders and rules of engagement when charged with murder, manslaughter or breach of international convention. We are not happy with the amendment because it looks at matters at too late a stage. The issues that the noble Lords, Lord Campbell and Lord Kingsland, have very properly raised should be considered when the decision to prosecute is made.

Lord Drayson: My Lords, it would be difficult for me to overstate the importance of this subject, which is why we have had a number of briefings on rules of engagement during the debates on this Bill. I am very grateful to noble Lords who have attended those briefings and discussions that we have had in this House and at the Ministry of Defence. So I will speak at some length on this matter. As we have debated the Bill, there have been clear differences of opinion on a number of issues, but on the matter of rules of engagement there has been a higher level of misunderstanding across the House than on any other issue, which is why we in the Ministry of Defence has taken so much trouble to try to explain to noble Lords the practical purpose of rules of engagement. Perhaps I may expand on that a little.
	Rules of engagement are key documents vital to the success of every operation. They are always classified to ensure that information about the way our forces will operate during a mission does not get into the public domain or into the hands of the enemy. Despite that, at a briefing held on 23 October for noble Lords, we took the unusual step of showing copies of actual rules of engagement for an operation. The reason we did that was to give noble Lords an opportunity to understand the way in which they are written, their complexity and their purpose. I think that those noble Lords who were able to attend the briefing found them illuminating and perhaps even surprising.
	Rules of engagement give our commanders the political and military framework to achieve their mission, including limits on the use of force. They must be consistent with the law, of course, but their purpose and even their language is operational. Rules of engagement are and must be flexible. They must not and do not tie commanders' hands unnecessarily. They leave important decisions to commanders on the ground and those commanders need and value this responsibility. Rules of engagement are more often than not specific to individual missions. No two profiles are the same. Crucially, they can be modified quickly to meet the needs of a changing threat or a changing mission. Rules of engagement must retain these key characteristics. If they do not, it would damage our operational effectiveness. To give rules of engagement statutory force in the way suggested here would be prejudicial to those characteristics on operations.
	Servicemen know that the rules of engagement will help them to conduct operations in a way consistent with the law, but each serviceman still has a responsibility to carry out his role lawfully. To that end, personnel rely on a combination of their training and detailed guidance. I shall address the points made just a moment ago by the noble Lady, Lady Saltoun, because she is absolutely right: it is vital for the individual soldier to have confidence in the basis on which he can operate so that, under pressure, he is able to make clear, split-second decisions with a level of confidence and clarity. But giving statutory force to the rules of engagement is not the way to achieve it.
	I recognise that Amendment No. 32 in the name of the noble Lord, Lord Campbell of Alloway, seeks to safeguard the position of soldiers in combat. It would mean that a serviceman who opens fire during armed combat or peacekeeping is not guilty of unlawful killing unless he intended not to comply with an order or rule of engagement. This defence is to apply where the serviceman has acted mistakenly, but in good faith. I understand the intention, but orders and rules of engagement simply do not cover every situation in which a serviceman might open fire. I have tried to explain why rules of engagement should not be drafted to tell each soldier exactly what the law requires of him in every possible situation. To take a simple example, rules of engagement do not say, "Do kill a prisoner"; that is a matter for training. So I return to the principle: do noble Lords want rules of engagement to be legal documents or operational documents? They cannot be both.
	I turn to Amendment No. 33. This would give all rules of engagement the force of law. It is a pity that the noble Lord, Lord Kingsland, was not able to attend the briefing on 23 October because we went into some detail on this point. As we looked at the detail of rules of engagement, it was clear how it would be inappropriate to try to give them statutory force. As I have said, they have an operational purpose and they vary between operations. The amendment would mean that the law would change both between and during operations; that is, changing as swiftly as the operational situation changes. It would create a position of legal encirclement of our Armed Forces in a way which I am sure the noble Lord does not intend.

Lord Drayson: My Lords, I am grateful to the noble Lord and I will address his point in a moment. Rules of engagement may form a document many pages long and of some complexity, detailing the nature of the operation. The card sets out guidance to a soldier operating in certain circumstances which I will come to shortly. However, we should not confuse the yellow card, as it was known during operations in Northern Ireland, or card alpha, as it is sometimes referred to, with rules of engagement. One is a sub-set of the other and we should not use the terms interchangeably.
	Amendment No. 34 would refine and limit Amendment No. 32. As I understand it, it would limit the defence under Amendment No. 32 to where there were rules of engagement which were relevant to conduct alleged. But the problems I have outlined in relation to Amendment No. 32 also apply here and, as I have explained, these are operational and not legal documents in their drafting.
	There are vital points of principle here. How are our operations to be directed if every change in the mission framework has statutory force? What effect is that going to have on the officers drafting these operational mission frameworks? How is our criminal law to work if we purport to change it between and even during operations, and how are our servicemen to be trained in what the law requires? Nevertheless, I recognise the sincere aim of noble Lords in addressing this matter. I recognise that underlying these amendments is a matter which is of the greatest importance to this House, and as we have debated the issue we have heard how in operations, servicemen who are tired, perhaps under fire and therefore under considerable pressure, may have to make split-second decisions about when to open fire. As we have just heard from the noble Lord, Lord Blaker, from his experience, it is vital that our servicemen have complete confidence in their position so that they can make instant decisions in response to a situation, given the difficult circumstances in which they often find themselves. Given that, I welcome the opportunity to give the following assurances. Whether a serviceman who opens fire and kills someone is guilty of murder depends on his view of the situation at the time, and what he does on the basis of that view. This applies both in combat and at any other time. For example, if a soldier opens fire because he believes that he is faced with an enemy combatant, he has not committed murder even if he has made a mistake. It is the honestly held view of the service man or woman which counts at all times. But inany case, a serviceman can use lethal force against anyone who he thinks is posing an imminent threat to human life. Again, what matters is the honest belief that he has in making the assessment. This is the law of self-defence and no rules of engagement can interfere with that inherent right, and as is explicitly stated on every rules of engagement profile.
	I believe that their training reassures all service personnel that they may trust to their view of what is happening. I hope that my statement here will strengthen that confidence. We ask a great deal of our Armed Forces. In return we owe them not only our gratitude and support but must give them the confidence to carry out the demanding and dangerous tasks we demand of them.
	No court martial has resulted from a combat incident in these last three demanding years of high intensity operations. At the same time, I am very aware that one case has perhaps done more than anything else to create uncertainty in this House and perhaps elsewhere about the legal position in which servicemen might find themselves—the case of Trooper Williams. I do not wish to go over the details of the case again—noble Lords are already very familiar with it—but we have, as far as possible, ensured in the Bill that such a situation cannot recur. We have also sought to ensure that servicemen do not face investigation without good reason.
	The Bill, therefore, makes three important changes. The commanding officer will no longer be able to dismiss a serious case so as to prevent further consideration by the service prosecuting authority. Clauses 125 and 127 provide that if the prosecuting authority decides not to charge, that authority will be able to direct that the accused is to be treated as acquitted. By such a direction, the Director of Service Prosecutions can bar prosecution in civilian as well as service courts. Lastly, commanding officers will have the general duty to ensure that allegations and evidence of offences are investigated appropriately. They will have a duty to make service police aware of allegations or evidence of serious offences. But they will only have to do this if the allegation or evidence is such as would indicate to a reasonable person that such an offence had been committed by someone in the CO's command.
	The main provision is in Clause 113. We believe that this will allow commanding officers to exclude those incidents where there is simply no real evidence of a serious offence. None of us wishes to have a situation where personnel on operations face an investigation following incidents where they have acted entirely properly.
	As many noble Lords will be aware, for almost two years now we have had in place in Iraq a post-incident procedure. This ensures that after shooting incidents where persons have or may have been killed or injured, commanding officers gather all available information within their unit and make an informed decision as to whether there is any evidence that an offence has been committed. If they conclude that there is no such evidence, they can recommend that a service police investigation does not take place. That recommendation is put to their chain of command for agreement. If the chain of command, which takes service police and service legal advice, agrees, the report is filed. This brings an early resolution to the vast majority of incidents. It also allows us to demonstrate that our commanding officers have made an informed decision and we have an audit trail of all incidents. Even when a commanding officer determines that an offence may have been committed, he is able to delay a service police investigation if the operational circumstances demand it. His recommendation to delay has to be agreed by his chain of command, also acting on service legal and service police advice.
	This policy ensures, even in high tempo security operations conducted in places such as Iraq, that commanding officers retain a proper discretion as to whether there should be an investigation. It also ensures that the very rare case in which there is evidence of an offence is investigated by service police, with the support of service prosecutors, as soon as possible. In this way, the operation of the military justice system determines, for example, whether a serviceman acted in good faith.
	I can confirm that the post-incident policy has proved very successful—so much so that, at the request of our operational commanders, it has been adapted for use in Afghanistan. I can also confirm—this is very important—that the provisions in the Bill that I have described about the CO's role will support such a policy.
	I have taken some time to set this out in some detail. These are vital issues of real importance to our Armed Forces. I hope that, as a result, members of the Armed Forces may continue to have confidence that the law takes full account of the extraordinary and dangerous requirements that they are expected to face. I hope that I have explained why—although I recognise their intention—these amendments would not be in the interests of the Armed Forces. On that basis, I cannot support them.

Lord Campbell of Alloway: My Lords, I am very grateful to all noble Lords who have spoken. That is no mere trite acknowledgement; very valuable contributions have been made, including that of the noble Lord, Lord Drayson.
	But it is very difficult to know quite how to approach what has been said. The fundamental conflict is that the noble and gallant Lords think there should be a new service law which recognises the realities of armed combat and which servicemen can trust—they have said so on Second Reading and on other occasions too—and the noble Lord, Lord Drayson, says, "No, we do not want that". The second form of conflict, which could be resolved, is that the noble Lord, Lord Thomas of Gresford, says, "Yes, perhaps we should do something about it, but we are not going about it in the right way"—a perfectly legitimate comment. My noble and learned friend Lord Mayhew of Twysden thinks we should do something about it and, naturally, would like to think again about how we are going to do it. Unfortunately, how we are going to do it, I am afraid, could never be agreed between the noble Lord, Lord Kingsland, and myself because we have a fundamental disagreement about statutory force, an issue which we cannot resolve. In that respect, I am basically on the side of the noble Lord, Lord Drayson. I quite agree that there are many principles at stake, but what are we going to do about it? Frankly, I do not really know, but I think something must be done.
	I should say to the noble Lord, Lord Thomas of Gresford, that in the case of the Scots Guardsmen—I happen to know about it—the soldiers' orders that morning, a Scots Guardsman having been killed by a sniper the day before, were to stop and search. They had been trained with their rules of engagement to give the warning twice—"Stop or I'll fire". They had been trained to fire in a certain position, in a certain way, at a certain part of the body to kill or maim. That was their training. On the last occasion, General Sir Mike Jackson was sitting on the Army board. He cross-examined them in depth and was totally satisfied that they were telling him the truth. It is no use saying that if people comply with the rules of engagement, as the noble Lord, Lord Drayson, did, they are all right. The men did not have a defence—they were not all right. If they had had a defence, they could have avoided their conviction.
	I will not take up more of your Lordships time. I frankly do not know what to do about this, but I feel, like I think the majority do, that something has to be done. I will try and find out how to do it and will be withdrawing the amendment.

Earl Attlee: My Lords, I shall speak to Amendment No. 37 as well. I moved an identical amendment in Committee.
	My position is that the power to dish out 90 days' military detention summarily is just too much. I am not convinced that commanding officers want this power. It is not much fun exercising summary judgments and many commanding officers will be distinctly uncomfortable awarding more than 30, let alone 60 or 90 days' military detention, even if it can be awarded only using extended powers and with the prior knowledge of the defendant—a point of which I am sure the Minister will remind us—and even though the Royal Navy already has 90 days available for detention.
	The House needs to understand that military detention is not some form of military community service but a severe but effective regime. The Minister will argue that the change is desirable because without retaining 90 days for the Royal Navy the number of courts martial might have to be increased. That is a fair point, but if the Army can manage with a maximum of 60 days, what is the Royal Navy doing wrong with its regime of military detention? It must be doing something wrong. Why cannot it achieve the desired corrective effect with only 60 days? I should be interested if the Minister could tell us how often Royal Navy commanding officers have been granted extended powers beyond 60 days.
	The Minister will also argue that if the Army and Royal Air Force were granted the ability to award90 days with extended powers, they would be able to reduce the number of courts martial by increasingthe punishment available, because it would not be necessary to resort to court martial. But the argument would be more convincing if we saw Army commanding officers regularly seeking and using extended powers. One senior Army officer to whom I spoke last week said that he never sought extended powers when he was a commanding officer, and when he was a brigade divisional commander he never granted them. It would be helpful if the Minister could show some statistical evidence that the extended powers are currently being sought and used by commanding officers, and of to what extent the Royal Navy uses extended powers over 60 days.
	Make no mistake—I was and still am prepared to exercise military discipline, but detention of over60 days is excessive. I beg to move.

Lord Garden: My Lords, I supported the noble Earl in Committee on what seemed a sensible amendment, seeking to harmonise detention powers to levels that have been perfectly satisfactory for the Army and Royal Air Force in the past. I look forward to hearing from the Minister how often the Royal Navy uses its powers between 60 and 90 days and why the circumstances are so different.
	There is another question—which I trust that the Minister has examined—of the resource costs that may be affected by this. Of course, if one brings up a level of punishment to a higher one, it sucks up the cases of people who would normally get lower punishments. That may involve extra resources in terms of detention provision. I hope that the Minister will be able to tell us that that has been taken into account.

Lord Drayson: My Lords, there has been much interest in the position of the commanding officer in the military criminal justice system, and I believe that we are all agreed on the importance of this. In recent years, some 95 per cent of cases have been dealt with at summary level. These sorts of cases, minor in terms of the criminal law, cover the low-level misconduct which, if not dealt with, can have a significantly corrosive effect on unit discipline and cohesion. We are convinced, and I am sure that the noble Earl will agree, of the merits of this approach.
	A key element of our consideration has been to ensure that in the future commanding officers will be able to deal with an appropriate range of offences. We have looked carefully at the different approaches of each of the services. We have done so in anticipation of the requirement in years to come, and therefore against a background of an increasingly expeditionary approach to operations in all our armed services. This has informed our approach to the offences that commanding officers should be able to deal with and the levels of punishment which they should have available.
	Under the Bill, Army and Air Force commanding officers will be able to deal with a small increase in the number of offences than they can deal with now. These are offences, such as assault occasioning actual bodily harm, which in straightforward cases are regularly dealt with by their naval counterparts and which, if proved, may require greater punishments. We must not forget, of course, that at Clause 239 it is specifically provided for that an accused must be given credit if he admits an offence and has co-operated with service police, and this applies to punishments awarded in the new summary hearing system as well as at the court martial.
	I am happy to send further detailed examples to the noble Earl of the Navy's use of this power, but I can give some data on how often it is used. In 2005, Royal Navy commanding officers awarded periods of detention 79 times at summary trial. Of these, eight were for60 days or more, and seven of these followed a guilty plea. In a further 24 cases, commanding officers awarded punishments of more than 40 days' detention. In 23 of these, credit for guilty pleas may have reduced the punishment from more than the 60 days which this amendment proposes. Removal of the power of 60 to 90 days' detention for the Royal Navy would therefore generate an unacceptable increase in cases sent for trial by court martial. It would quite simply have an adverse impact on confidence in the system of discipline, and on operational effectiveness.
	Conversely, by gaining these powers, the Army and RAF might well see a small reduction in the number of cases that need to be dealt with by court martial if accused persons are happy to be dealt with by their commanding officer. There are important safeguards in place over the use of extended powers to deal with the additional offences and the use of sentences of detention longer than 28 days.
	The powers of punishment available to commanding officers is an integral element of Bill proposals. The amendment would have an immediate adverse affect on the administration of discipline in the Royal Navy, and would remove what would be an important improvement for the Army and Air Force. The proposals in the Bill have been carefully developed to reflect the current and anticipated future requirements for commanding officers, and safeguards appropriate for service personnel. I hope that in light of this explanation the noble Earl will withdraw his amendment.

Lord Thomas of Gresford: My Lords, other matters arise in this grouping. The noble Lord, Lord Drayson, has followed some of the suggestions made in Committee, for which I am grateful. However, I say in traditional Liberal Democrat tones that he does not go far enough.
	The points of principle to which I refer in Amendments Nos. 50 and 51 are important. I imagine that to those who have been in the services and have sat on courts martial it must seem very odd that in America a court martial can consist of a cross-section of the Armed Forces, as opposed to officers and warrant officers. However, as I said previously, if one looks at the matter from the point of view of the defendant who is seeking a fair trial, there is a basic principle involved. The basic principle as set out in Magna Carta is that he should be tried by his peers. The private soldier who appears before officers cannot expect them to have the same understanding of the circumstances in which he committed offences as a jury drawn from a cross-section of the community, particularly if he is charged with a civil offence.
	I pose again the point I made in Committee. First, would it not seem odd for a policeman to be charged or tried by senior police officers or for firemen to be tried by senior fire officers, or for someone working in the City to be tried by senior accountants or financiers from the City? Throughout the community it can always be said, "We are part of a special group. We have special rules that only we understand. Therefore, it is only right that we should be the people who try the underling who is brought before us because of his misdemeanours. We are part of such an arcane mini-society that only we can understand the matter". That is not the principle on which the criminal law generally acts in this country. Whatever a person's position, when he is brought before the ordinary criminal courts of this country he is tried by a cross-section of the community with wide experience of all matters and he can expect them to have a full understanding of his background and position.
	Secondly, Amendment No. 51 proposes that the court martial should consist of a cross-services section of people. I understand that there is a considerable desire in the services for them to remain separate. They have different traditions in many regards, which we respect. But surely the armed services should be looked at as a whole in the context of a Bill which brings them together for the purposes of courts martial and criminal proceedings. A Director of Service Prosecutions covers all branches of the services. Amendment No. 58, in the name of the noble Lord, Lord Astor, suggests that,
	"Court Martial rules must make provision for the majority of the Court Martial panel to be drawn from the defendant's own service".
	That seems inappropriate. Surely it is right that experience across the services should be shared and that there should not develop one level of understanding or of justice in one service and another level in another.
	I shall not pursue Amendment No. 52 at all. Amendment No. 55 would simply require the qualifications for membership of the court martial to be limited to a serving member of the Armed Forces without reference to rank or position. In Committee I pointed out that that is the position in the United States, and has been for many years. I see no reason why we should not move to a more egalitarian system in courts martial in this country.
	My final point, on Amendment No. 57, is very different. It is on majority verdicts. I have already spoken about that today, and I am not going to repeat what I said. It is the most distinctive part of courts martial that the decision is by a simple majority. I know the verdict is decided by simple majority in Scotland, but there are 15 jurors there. There are simple majorities in some of the continental systems, but we have always thought our system of trial by12 jurors to be superior to systems where only a few people sit.
	Magistrates courts in this country deal with 95 per cent of criminal cases, but they have very limited powers and deal with minor offences. If courts martial confined themselves to disciplinary matters, which take up most of the first part of the Bill, and did not get involved in civil offences, I would have a different attitude. However, where murder, manslaughter, rape and so on can be charged, and where prosecutions can proceed before courts martial, it is only right that majorities, as set out in Amendment No. 57, should be required before guilty findings are made. I have said as much as I need to without repeating what I said in Committee.

Earl Attlee: My Lords, I am grateful for the Minister's amendments in this group, which are welcome. I do not support the amendments proposed by the noble Lord, Lord Thomas of Gresford. If he is right in his general approach, perhaps we should dispense with courts martial entirely and remand all the cases to Crown courts in the United Kingdom—just bin courts martial altogether. I do not think that that is the view of the House. I do not know whether the noble Lord has noticed, but not all soldiers are particularly bright, and if you had a small panel, they would struggle with a complex fraud case, as does a jury now.

Earl Attlee: My Lords, generally speaking, the other services, on average, have more intelligent servicemen. That is a fact of life. Royal Air Force equipment is rather more delicate than a Challenger tank, and the Royal Navy's equipment is really complicated.
	Also, the noble Lord's position assumes that the officers on a court martial feel it their duty to convict. I have not sat on a contested court martial, but I know that the ethos among officers is definitely not to want to convict, because then you are going to have to sentence. Officers in a court martial want to be absolutely sure, if they are to convict, that the person is guilty beyond all reasonable doubt. I strongly support my noble friend Lord Astor of Hever in his Amendment No. 58. I would be extremely unhappy if I found myself being court martialled by a panel other than one made up of Army officers who understood the context of the situation in which I had found myself.
	I have an amendment in this group, and I declare an interest because I have a cousin in legal practice in Scotland who undertakes a considerable number of service cases. My understanding is that the most northerly court martial centre will be in Catterick and there will be none in Scotland. However, there are a large number of service bases in Scotland, such as Kinloss, Lossiemouth, Leuchars, Arbroath, Rosyth, Helensburgh and Edinburgh. Surely, a tri-service court martial centre in Scotland would be viable. There are considerable costs in moving all the court players all the way to Catterick from Scotland.
	There is a further problem with the summary appeal court, which sits at a court martial centre. As I said, the most northerly court martial centre is Catterick, and a serviceman might be deterred from appealing a summary jurisdiction, even though he knows that he has been unfairly dealt with—I am afraid to say that I have been told that even today there are one or two commanding officers of questionable parentage. The reason for this reluctance is the need to go all the way to Catterick—not just for himself, to appeal, but for all the other players. That does not compare well with the civilian situation, where you can appeal a magistrates' court decision in the local Crown court. I hope that the Minister can assure me that one of the benefits of the Bill will be that we can have a tri-service court martial centre in Scotland.

Earl Attlee: My Lords, when the noble Lords refers to an independent member, does he mean someone with no military experience whatever or someone who has military experience but is no longer serving in the regular Armed Forces? It might be desirable for someone who is no longer serving and is out of the system to take an independent view, but I am not sure about the presence of a complete lay person.

Lord Drayson: My Lords, we now return to what I previously called a key part of the Bill, on which I have written to noble Lords. In speaking to Amendment No. 66, I shall also cover Amendments Nos. 67 and 72.
	I remain absolutely convinced that the appointment of a Service Complaints Commissioner under the Government's amendments moved in Committee is right for the way that the Armed Forces operate. It meets the overall objectives underpinning Mr Blake's recommendation in the Deepcut review, which sought to promote the effective operation of existing military proceedings, rather than to replace them and to provide independent assurance that the procedures are working as effectively as they can. It will provide the best solution for service personnel. They need to have confidence in a fair and efficient system. I believe that this is best achieved by the changes we are making in the Bill. They streamline the existing system and introduce independence where that is necessary. But they also retain a connection between redress and the services. I think it essential to retain the important role of the services in looking after the welfare and discipline of those under command.
	I would like to reiterate some of the main points of our proposed system. First, the Service Complaints Commissioner will have an important role in relation to allegations of bullying, harassment, and other forms of misconduct. The commissioner will be able to refer such complaints to the chain of command, which will then have to check with the alleged victim whether he or she wants to make a complaint. These allegations can be sent to the commissioner by the alleged victim or any other member of the public.So the Bill will provide an alternative to going straight to the chain of command. We will lay down in subordinate legislation, which will be subject to affirmative resolution, how the commissioner is to be kept informed about cases he has referred to the chain of command. This will also ensure that whoever contacted the commissioner about the case can also be kept informed of progress.
	There will be independent oversight by the commissioner of the performance of the system as a whole, with direct reports to Parliament and direct access to Ministers. Further, the independent element in the consideration of complaints related to bullying, harassment and other forms of misconduct will be provided by the presence of an independent member on service complaint panels. We have already talked about complaint panels and I now want to concentrate on the commissioner.
	As I have said previously, and I again stress here, although some of the proposals in AmendmentsNos. 66 and 72coincide with those of the Government, Amendment No. 72 goes beyond what is proposed by the Government. The noble Lord's amendments would involve the creation of a parallel system of complaint, controlled and directed by a commissioner. The relationship between its decisions and those of the internal redress system is not specified, but I suspect that having two systems would inevitably be complicated. The amendment leaves it to the Secretary of State to work out the details of this parallel or alternative system.
	However, these amendments would undermine the responsibility of the services for dealing with complaints and the parallel system they require would mean that some complaints would be dealt with under the internal system and some under the commissioner's. This could result, for example, in a lack of consistency in dealing with complaints; in the application of time limits; and ultimately, a significant and worrying decline in the ability of the services effectively to look after their own people.
	However, I share the view of the noble Lord, Lord Garden, expressed in the House on 12 October, that it will be crucial to ensure that the post of Service Complaints Commissioner is filled by an appropriate person. As such, we intend that this individual will be someone of the stature and experience appropriate to a post of this importance, as the noble Lord has said. We will consult the Children's Commissioner in line with the recommendation of the House of Commons Defence Committee.
	We envisage that appointment will take place through public advertisement and a fair and open competition, and that the normal principles of the public appointments process will apply. We will consult further with any other persons whom we think can usefully contribute. We intend that the selection panel will include an external, independent element, and we are exploring the possibilities, including the opportunity for the selection panel to be chaired by a senior Civil Service commissioner. I remain convinced that the appointment should be made by the Secretary of State, as is the norm in comparable cases, and we see no reason to be different with this appointment.
	I also agree that the commissioner should be adequately resourced in order to give effect to the role. This will need to be kept under review in relation to the commissioner's workload as the role develops. As an individual officeholder, the commissioner will have the legal powers necessary to appoint staff. The commissioner's annual report will provide the commissioner with the opportunity to raise any concerns about resources and the ability adequately and effectively to carry out the role on that basis. I most firmly believe that the existing system will work fairly and efficiently, and that it will maintain the balance between the service role and the appropriate degree of independence in responding to complaints. I therefore ask the noble Lord to withdraw the amendment.

Lord Garden: moved Amendment No. 68:
	After Clause 340, insert the following new clause-
	"SPECIAL PROVISION FOR SERVICE PERSONNEL UNDE THE AGE OF 18
	(1) Service personnel under the age of 18 are not permitted to serve in combat areas.
	(2) Service personnel under the age of 18 are not permitted to carry out guard duty with live weapons.
	(3) Service personnel under the age of 17 are to be accommodated in dedicated locations, and particular attention is to be given to their care."

Lord Garden: My Lords, we take very seriously the issue in the amendment of whether we are meeting the responsibilities that are necessary for the under 18s. That is not just because it was such a major feature of the Deepcut inquiry, but also because of our international obligations. If the business programme had allowed us time to debate the Bill yesterday, I thought that today we would come to this amendment when the House was fuller than it is now. I want a proper debate on this matter. Given the way in which the business has been handled, I can probably save considerable time this evening, if the Minister agrees that we return to this at Third Reading. It is an important fundamental principle about how under 18s are handled as members of the Armed Forces. I beg to move.

Lord Garden: My Lords, AmendmentNo. 69 covers another important issue, so I would like to take a little time to speak to it. As your Lordships will recall, it is a variation on the issue of the responsibilities of the commanding officer as regards worrying about suspicious movements through his airfield. Your Lordships will have seen that the vice-president of the United States last week appeared to endorse the practice of interrogation using water-boarding as a "no-brainer", to quote him. The evidence since we last discussed extraordinary rendition has been growing constantly. The new book by Stephen Grey, Ghost Plane, was featured in the Guardian of 26 October. We have tried to get the Government to respond to these concerns in different ways, with amendments to the Civil Aviation Bill and the Police and Justice Bill.
	I now have a much more limited aim: to ensure that military personnel are not implicated in this nightmare activity of extraordinary rendition. The debate we had in Committee was extraordinarily useful. The Government took their usual position that there is no problem because it is all covered by international treaties already. The Minister gave us reassurances that the military are not really at risk because all these flights are covered by diplomatic clearances; the commanding officer is thus absolved of responsibility.
	I was, however, less comforted once I re-read the views of the noble Lord, Lord Kingsland—I am pleased to see him in his place—whose knowledge of the law much exceeds mine:
	"I am in no doubt that if the commanding officer of any aerodrome in the United Kingdom had reason to believe that an in-transit aircraft was engaged in an act of external rendition, or there was a real risk that it was so engaged, he would be under a personal legally binding duty to investigate the matter, irrespective of any superior orders he had had to the contrary. Not to act, in those circumstances, would render him liableto prosecution for complicity in torture".—[Official Report, 12/10/06; cols. 439-440.]
	My amendment is a very mild one in some ways, to ensure that we do not end up in that situation. In Committee, the Minister was obviously less certain about the commanding officers' situation, as, one must assume, the commanding officers will be. The amendment permits the Defence Council to help commanding officers by issuing appropriate regulations, and reminds them of their legal responsibility. I beg to move.

Lord Thomas of Gresford: My Lords, I simply ask the Minister: are records not kept of every person who is evacuated from overseas operational theatres as a result of injury or serious illness? If not, why not? I beg to move.